[Cites 24, Cited by 0]
Bombay High Court
Mayur Vilas Malusare vs The State Of Maharashtra on 19 January, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-AS:3169-DB
1/39 Apeal-668-2012+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.668 OF 2012
Pratik Devidas Dolas .. Appellant
Versus
The State of Maharashtra .. Respondent
ALONGWITH
CRIMINAL APPEAL NO.799 OF 2012
Mithilesh Sanjay Kamble .. Appellant
Versus
The State of Maharashtra .. Respondent
ALONGWITH
CRIMINAL APPEAL NO.213 OF 2015
Vijay Maruti Dhamdhere .. Appellant
Versus
The State of Maharashtra .. Respondent
ALONGWITH
CRIMINAL APPEAL NO.160 OF 2014
Mayur Dagaji Bachav .. Appellant
Versus
The State of Maharashtra .. Respondent
ALONGWITH
CRIMINAL APPEAL NO.789 OF 2013
Mayur Vilas Malusare .. Appellant
Versus
The State of Maharashtra .. Respondent
ALONGWITH
CRIMINAL APPEAL NO.730 OF 2012
Raj Mohan Sonavane .. Appellant
Versus
The State of Maharashtra .. Respondent
::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 22:50:53 :::
2/39 Apeal-668-2012+.doc
ALONGWITH
CRIMINAL APPEAL NO.752 OF 2012
Sachin Vijayanand Dolas .. Appellant
Versus
The State of Maharashtra .. Respondent
...
Ms. Anjali Patil a/w Tohid Shaikh, Rahul Jaiswar and Onkar Gurav
for the Appellant in Appeal Nos.668/2012 and 799/2012.
Mr.Niteen Pradhan a/w Shubhada Khot i/b Ameeta Kuttikrishnan
a/w Shahen Pradhan for the Appellant in Appeal No.752/2012.
Mr.Shreyas Barsawade a/w Mahesh Zanwar for the Appellant in
Appeal No.730/2012.
Mr.Daulat Khamkar for the Appellant in Appeal Nos.160/2014.
Mr.Vrushabh Savla for the appellant in Appeal No. 789/2013.
Mr.Mahesh Zanwar for the appellant in Appeal No. 213/2015.
Ms.Supriya Kak, APP for the State.
CORAM : BHARATI DANGRE &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 17th DECEMBER, 2025
PRONOUNCED : 19th JANUARY, 2026
JUDGMENT (Per BHARATI DANGRE, J) :
-
1 By judgment of the Addl. Sessions Judge, Pune in
Sessions Case No. 565/2010 dated 01/06/2012, the seven
accused persons stood convicted for an offence punishable
under Section 302 of the Indian Penal Code (IPC), as they
caused the death of Harshal, by mounting an assault by eight
persons, seven of whom came to be arrested and faced trial
before the Sessions Court.
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All the arrested accused faced a charge that, on
26/4/2010 at about 22.30 hours, they formed an unlawful
assembly near the chinese stall of deceased Harshal Tikhe at
Alandi Road, Pune, with an intention to murder him and they
indulged themselves in rioting, being armed with deadly
weapons like gupti, stump, stone etc. and since they caused his
death, they committed offence punishable under Sections 302,
alongwith Section 143, 147, 148, 149 of the IPC. Since the
accused persons were found in possession of the deadly
weapons, they also faced charge under Section 4 along with
Section 25 of the Indian Arms Act, and since they contravened
the order promulgating by the Police Commissioner, Pune under
Section 37(1) of the Bombay Police Act, they were also made to
face charge under Section 135 of the Bombay Police Act, 1951.
2 Upon the charge being framed against the accused
persons for causing death of Harshal Tikhe by the Sessions
Court, on 19/1/2012, all the accused pleaded not guilty and
chose to be tried. In order to establish it's case, the prosecution
examined 18 witnesses, including the eye witnesses PW 9, PW
11 and PW 12 and also examined the complainant PW 8, who
turned hostile but was subjected to cross-examination.
PW 1 to PW 3 are the panch witnesses examined by
the prosecution on discovery panchnama on recovery of clothes
as well as weapons. Two witnesses Samir Wadane and
Bhushan Shinde, being examined as PW 5 and PW 6 who
turned hostile, are examined to establish the scene of offence
4/39 Apeal-668-2012+.doc
Dr. Subhash Madane is examined as PW 7, as he ascertained
the cause of death of Harshal by conducting postmortem. The
Special Judicial Magistrate was examined as PW 17, and
Ravindra Pandurang Chavdhar, was examined as PW 18 along
with ASI Bhaskar Bhonde from Bhosari police station, who
recorded the First Information Report, which resulted into
registration of subject Crime No.17/2010 on 27/4/2010.
During the course of trial, several documents were proved
through the aforesaid prosecution witnesses in order to
establish the guilt of the accused persons.
All the accused were given an opportunity to rebut
the evidence brought on record by the prosecution, by
recording their statements under Section 313 of the Code of
Criminal Procedure, 1973.
3 On appreciation of the material placed on record by
the prosecution, in support of the charges levelled, despite
some of the witnesses having turned hostile, the learned Judge
relied upon the principle of law, to the effect that the evidence
of the hostile witnesses can be relied upon if it inspires
confidence of the Court. Reliance was placed upon the
testimony of PW 8 and PW 9, being residents of the same
locality and well acquainted with some of the co-accused.
Recording that, from the evidence and documents
brought on record and, in specific, by relying upon the evidence
of PW 11 and PW 12, the independent witnesses as well as the
testimony of the panchas to the seizure of the weapons used by
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the accused persons in commission of offence and the
identification of the accused by the witnesses, the Addl.
Sessions Judge ruled out the possibility of false implication of
the accused by PW 1 to 4, 7 to 10 and 11 to 18. Since all the
accused persons were found together by the witnesses, claiming
to be eye witnesses and as they were found in possession of
arms/weapons, some of them being seized by the Investigating
Agency, the learned Judge arrived at a conclusion that the
prosecution has established it's case beyond reasonable doubt
and handed over conviction under Sections 143, 147, 148, 149,
302 read with Section 149 of the IPC, but having failed to
establish charge under Section 37(1) r/w Section 135 of the
Bombay Police Act and Section 4(25) of the Arms Act, acquitted
them.
On being convicted under Section 302 of the IPC
r/w Section 149, all the seven accused are sentenced to suffer
Imprisonment for life and pay fine of Rs.2,000/- each in default
to suffer RI for six months.
On being convicted under Section 143 IPC, they are
directed to suffer Rigorous Imprisonment for six months and to
pay fine of Rs.500/- each, with a default sentence of one
month. Further, on their conviction under Section 147, they are
sentenced to suffer RI for two years and default sentence for
payment of fine of Rs.500/-.
Accused nos.1 to 5, on being convicted under
Section 148 are sentenced to suffer RI for three years and to
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pay fine of Rs.1,000/- each, in default to suffer SI for three
months.
The sentences imposed on all accused are directed
to run concurrently.
4 Being aggrieved by the aforesaid conviction, seven
appeals are filed by the convicted persons with the following
details.
Appeal No. Name of the Accused Accused No.
We have heard Advocate Anjali Patil for the
Appellant Pratik Dolas (Accused no.1) in Appeal No.668/2012
and Appellant Mithilesh Kamble (Accused No.2) in Appeal
No.799/2012, who are on bail.
Vijay Maruti Dhamdhere (Accused No.3) in Appeal
No. 213/2015 and who is in jail, is represented by Advocate
Mahesh Zanwar. He has also marked his appearance for
accused no.6 Raj Mohan Sonawane in Appeal No.730/2013
along with Advocate Shreyas Barsawade. Accused No.4 Mayur
Bacchav who is also in jail is represented by Advocate Daulat
Khamkar, whereas accused no.5 Mayur Vilas Malusare in
7/39 Apeal-668-2012+.doc
Appeal No.789/2013 who is in jail is represented by Vrushabh
Sawla. Accused No.7 Sachin Dolas who is appellant in Appeal
No.752/2012 and who is on bail is represented by Advocate
Shubhada Khot along with Advocate Ameeta Kuttikrishnan.
The State is represented by Additional Public
Prosecutor Ms.Supriya Kak.
With the able assistance of the respective counsel,
we have perused the paper book which has compiled the
material on the basis of which the accused are convicted,
including the testimony of the witnesses and the documentary
evidence.
5 As per the prosecution case which could be
discerned from the complaint filed by Pratik Gavali (PW 8) on
27/4/2010, which resulted into registration of the subject C.R
(Exhibit 160), a friend of Harshal Tikhe, on 1/4/2010, his
cousin brother Vinay Gawli, on the day of village Bhosari's fair
(Urus) was walking all alone and since he was hungry, he
reached the chinese stall at PMT square and while he was
waiting for the food to be served, he heard the word
"mashakali" from behind the wall and when he crossed the
wall, he noticed Accused No.2 Mithilesh and Accused No.3
Vijay Dhamdhere along with three to four boys, who abused
and assaulted him and when he had called their common friend
Harshal, and the issue was sorted out.
8/39 Apeal-668-2012+.doc
With reference to the incident of 26/4/2010, the
complainant (PW 8), reported that when he went to meet his
friend Harshal at his chinese stall at about 10.30 p.m, his cousin
Vinay was also present there. While they were chit-chatting, he
received phone call from his friend Lakhan Darekar and while
he was engaged in conversation, he noticed five to six
customers having food at the chinese stall. At that time, Pratik
Dolas, Mithilesh Kamble, Vijay Maruti Dhamdhere whom he
knew, and four to five people rushed towards Harshal, and
Vijay assaulted Harshal by stump on his head, whereas Pratik
mounted an assault by means of a gupti in his hand and
stabbed him in the chest and another stab injury was inflicted
on his right thigh. Vijay continued his assault and Harshal, the
injured, in order to escape the assault, started running towards
Alandi Road. At that time, Mithilesh picked up a stone and hit
him, as a result of which he stumbled and four to five other
persons who were present started assaulting him with fists and
blows. When Pratik reached the spot, the assailants fled away
and Harshal was found lying in an injured condition. He was
carried to Sant Dnyaneshwar Hospital, Bhosari, and thereafter,
taken to YCM Hospital, Pimpri, where he was declared dead.
6 The aforesaid version resulted in the registration of
an FIR by Bhaskar Bhonde (PW 13), who converted the
information into CR No.172/2010, which is exhibited through
PW 13. Portions marked 'A' and 'B', according to PW 13, were
recorded as per the narration of Pratik and in the examination
9/39 Apeal-668-2012+.doc
in chief, PW 13 deposed the contents of the FIR were read over
and explained to the complainant at the time, when he put his
signature. In the cross-examination, he admitted that it is not
recorded in the FIR that he read over the FIR in presence of the
complainant.
At this juncture, it is necessary to refer to the
evidence of PW 8, Pratik, the complainant, who deposed that
the entire incident took place while he was talking on mobile
and was at the rear side of the stall and after some time, when
he realized that a crowd had gathered, he reached the spot to
find that Harshal was lying in injured condition with blood
oozing. He categorically deposed that he had no idea who
assaulted him, but he took him to the hospital for medical
treatment.
He also deposed that he had filed an FIR, but had
not read its contents, and he admitted that his supplementary
statement was recorded after three days, and that he also gave
a statement before the Special Judicial Magistrate which was
recorded under Section 164 of the Code of Criminal Procedure.
According to PW 8, he was called for identification
parade in Yerwada Prison on 14/9/2010 when Executive
Magistrate Vikas Bhalerao PW 4, conducted the Test
Identification Parade (T.I.P), and he identified accused nos.1 to
6, and he identified them because they were from his village.
Once again, he was called for an identification parade on
1/10/2010, when he identified Accused No.4 Mayur, as he also
10/39 Apeal-668-2012+.doc
was residing in the locality. This witness was declared hostile
and was cross-examined by the Public Prosecutor and
confronted with his statement u/s.164 of Cr.P.C. He denied the
suggestion that he had not identified six accused persons who
had participated in the assault on Harshal during the
Identification Parade. He reiterated that all the accused
persons identified by him, were present in the Court and he
knew them well, as they were his schoolmates.
In his cross-examination, he admit that on
27/4/2010, when his supplementary statement was being
recorded, he had stated before the police that he did not know
who assaulted Harshal. However, he also admit that when he
was taken by Bhosari police for T.I. Parade at Yerwada Prison,
he and his brother were present, but he do not know who the
other persons were.
7 The alleged incident that occurred on 26/4/2010
was also witnessed by three others, being PW 9, PW 11 and PW
12 and the prosecution has heavily relied upon their testimony.
PW 9 is a minor who was acquainted to the
deceased, he being the friend of his brother.
When he stepped into the witness box, he did not
support the case of the prosecution, as he stated that he was
aware that Harshal was assaulted by someone, but he was not
in a position to state as to who assaulted him, but he admit that
he called an auto-rickshaw and took him to the hospital. He
11/39 Apeal-668-2012+.doc
also denied that he identified any of the accused when he was
called in Yerwada Prison for their identification.
The witness is cross-examined by the learned APP,
but he remained firm on his stand and therefore, his testimony
is of no assistance to the prosecution.
8 Another eye witness to the incident is examined as
PW 11, and the prosecution has strongly relied upon his
testimony. According to this witness, Rehmat, who was
engaged in the business of clothes as a retailer on the road
near Pune station, on the date of incident, he engaged himself
in hawking along with his brother Nasir Shah (PW 12).
According to him, when he reached the water tank square near
Dighi, at about 9.30 to 9.45 p.m, and hired a jeep and was
proceeding towards Bhosari, his brother suggested that they
should have food. Therefore, they got down from the jeep and
approached a stall of chinese food, to notice one young and
stout boy were standing near the stall and he inquired what
they wanted. They ordered for water and then, they were in
discussion about what food should they order. PW 11 described
the happenings in following words :-
"While we were discussing, at that time from the rear side, 7 to 8
persons possessing the stump, Gupti and other weapons came near the
stall uttering abusive language. Out of 8 persons 2 have assaulted on
the person who was running the stall by the stump on the head and
on his back, with whom we were discussing earlier. Thereafter, one of
the assailant having crest (Shendi) has given a blow of Gupti in the
stomach of the owner of the chinese stall. Thereafter two assailants
have thrown chilly powder in his eyes. Thereafter the injured has
attempted to ran away, but while running his trouser has entangled in
his leg, with the result he fell down. Then one of the assailant has
12/39 Apeal-668-2012+.doc
assaulted him with big stone. Then the person who was earlier
assaulted by Gupti to the injured also came there and gave two blows
to the injured by Gupti. Thereafter all assaulted the injured with kick
blows and stump. Thereafter, people gathered there and assailant ran
away. I can identify the assailants who had assaulted to the injured if
they were shown to me."
9 Admittedly all accused are unknown to him. In the
Court, PW 11 identified Accused No.3 Vijay Dhamdhere as the
person who had assaulted the deceased by stump. He also
identified Accused no.5 Mayur Malusare, who had assaulted the
deceased by means of gupti and he also identified Accused No.4
Mayur Bacchav, who had assaulted by means of a stone.
PW 11 also stated that he can identify the two
persons who had thrown chilli powder in the eyes of deceased
and those who had assaulted the deceased by kick blow, gupti
and stone if they are shown to him.
His deposition further records thus :-
"The witness volunteers that all assailants are
present in the Court who had assaulted to the
deceased."
Admittedly, he did not point out to the other
accused persons in particular.
10 According to PW 11, he was called by the police in
connection with the Identification of the accused in Yerwada
Prison twice, once in the month of September 2010 and
secondly, in October 2010, when the Tahsildar conducted the
Test Identification Parade and he identified some of the accused
during the said parade.
13/39 Apeal-668-2012+.doc
PW 11 also identified the weapons from the
muddemal property. This included Article no.7 gupti, (article
no.6) - two pieces of stump as well as Article 4 - stone which
was used by the assailants.
11 Nasir Nazir Shah, who was accompanying PW 11
Rehmat, when they visited the chinese stall and who claimed
that they had seen the deceased being assaulted by the accused
persons, is examined, as PW 12.
Speaking in sync with PW 11 Rehmat, Nasir Shah
deposed that when they reached the chinese stall at around
10.05 or 10.10 p.m, they put the bundle of the readymade
garments on the ground and sat on the chair in front of the
chinese stall, facing each other. After they were seated, one
person standing in the shop, inquired about the food they
would like to order and after giving water while they were
discussing what they should order, his brother Rehmat saw
some movement at his back side and at that moment he also
turned his back, to notice 7 to 8 persons coming towards them,
using abusive language and being armed with weapons like
stump, gupti and other weapons.
According to PW 12, the two persons assaulted on
the head and back of the person who provided water, and the
injured person attempted to run away. At that time, one of the
person possessing knife or gupti with blue handle gave blow to
the injured and other two persons threw chilli powder in his
eyes. Taken aback, by this sudden assault, he along with his
14/39 Apeal-668-2012+.doc
brother moved back 5 to 6 feet from their earlier position and
thereafter, the injured started running from front side.
However, because his trouser got entangled, he fell down and 8
to 10 persons started assaulting him by stump, stone, kicks and
blows. As per Nasir, the person who was possessing gupti gave
two blows to the injured and thereafter, all the assailants ran
away.
12 PW 12, claiming to be an eye witness has deposed
before the Court that he could identify the assailants and
according to him the persons who had assaulted the deceased
by stump and gupti were present in the Court and when he was
directed to identify them by touching them, he identified Vijay
Dhamdhere - Accused No.3, who had assaulted by stump. He
also identified Mayur Bacchav - Accused No.4 who had also
assaulted by stump and stone and he also identified Mayur
Malusare who had assaulted deceased by gupti.
PW 12 also identified Sachin Dolas - Accused No.7
who had thrown chilli powder in the eyes of injured.
On being confronted with the weapons used by the
accused i.e. Article nos.4, 6, and 7, he also identified them.
PW no.12 was also called for identification parade
in jail and according to him, he identified some of the
assailants.
13 The case of the prosecution hinges on the testimony
of these two key witnesses.
15/39 Apeal-668-2012+.doc
The respective counsel for the appellants have
pointed out to us the inconsistency in the version of the two
witnesses and have raised a serious doubt about the
identification of the accused by them. Even their presence on
the spot is also doubted as it is urged that PW 12 has
categorically deposed that they were carrying the bundle of
clothes and according to him, they put the bundle of garments
nearby, but on the spot, nothing was found. Apart from this, a
serious doubt is raised as the presence of these two persons on
the spot is not established by any other witness and a question
is raised as to how they are cited as witnesses, as the statement
of these witnesses is recorded by the police after a gap of eight
days and they never went to the police station, claiming that
they had witnessed the alleged incident.
As far as PW 12 is concerned, his statement under
Section 161 of Code is recorded on 6/5/2010, and according to
him, when he along with his brother were present on the
chinese stall at around 10.30 p.m, 7 to 8 people rushed to the
spot with weapons, including a gupti and stumps and they
assaulted the person present on the stall, and one person
according to him, stabbed him in his stomach and others threw
chilli powder. According to his version, they left the cloth of
bundle on the spot and rushed towards Om Sai vadewala and
noted that the person assaulted, was lying at a distance and his
pant got entangled in his feet and the assailants were assaulting
him with stump and fists and blows, and the person with hair
16/39 Apeal-668-2012+.doc
tuft, stabbed him twice despite he already being injured.
Thereafter, as people gathered on spot, they were scared and by
picking up their bundle of clothes, they ran away. According to
this witness, apprehending that the police would inquire with
him and cause trouble, for 7 to 8 days, they started hawking in
Pimpri chinchwad area, instead of Bhosari/dighi. However, as
per his 161 statement, police made inquiry with them while
they were selling clothes in Bhosari and they disclosed the
incident of 26/4/2010, and also revealed that they had closely
seen the assailants and if they were shown, they could be
identified.
14 As far as PW 11 is concerned, he identified Accused
No.3 Vijay Dhamdhere, Accused No.4 Mayur Bacchav and
Accused No.5 Mayur Malusare, by specifically stating that it is
Vijay who had assaulted by means of stump and Mayur
Malusare assaulted by gupti and accused no.4 Mayur Bacchav
who had assaulted by stone.
As far as the other accused persons are concerned,
who threw chilli powder in the eyes of deceased and the
persons who assaulted him by kick blow, gupti and stone, PW
11 deposed that he can identify them, if shown and then he
told the court that all the assailants are present in the Court.
Pertinent to note that the identification of the accused has
to be very specific and except identifying accused nos.3 to 5 in
the dock, PW 11 did not identify the other accused specifically,
but made a general statement that all the accused are present.
17/39 Apeal-668-2012+.doc
15 In the Test Identification Parade which is conducted
by PW 4, as Nayab Tahsildar, in Yerwada Prison, PW 11
identified accused no.5, by touching his body but he did not
identify accused no.3 and wrongly touched the dummy by
stating that he was accused no.3 Vijay Dhamdhere, whom he
identified in the Court. Further, as per PW 4, PW 11 also
identified Accused No.6, by touching his body, but failed to
identify Accused No.7 Sachin Dolas and he identified dummy
no.3 in the row, as accused no.7.
As accused no.4 was not available for the
identification parade held on 14/9/2010, a letter was issued by
the Nayab Tahshildar, on 24/9/2010 to the Jail Authorities and
police station Bhosari, as regards conduct of Test Identification
Parade of Accused No.4 Mayur Bacchav on 1/10/2010 and
accordingly, the Test Identification was conducted on the said
date by asking the witness to remain present.
In this Test Identification Parade, PW 11 identified
Mayur Bacchav by touching his body.
However, PW 11 though identified accused no.3 in
the dock, he did not identify Accused No.3 in TI Parade.
Similarly, as far as PW 12 is concerned, as per his version, there
were 8 to 10 persons who were assaulting the deceased with
stump, stone, kicks and blows and one person assaulted by
gupti. He identified Accused No.3 Vijay, to be the person who
had assaulted the deceased by stump and also identified
Accused No.4 Mayur who is alleged to have assaulted by stump
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and stone. He also identified Accused No.5 Mayur Malusare as
the one assaulted by gupti. He also identified Accused No.7
Sachin Dolas as the one who threw chilli powder in the eyes of
the injured and stated that others assaulted by kicks and blows.
Thus, PW 12 identified accused nos.3, 4, 5 and 7 in
the dock and even in the Test Identification Parade also, he
identified accused nos.3,4 and 5 though he could not identify
accused nos.1, 6 and 7 during the Parade.
16 It is vehemently urged before us that the incident is
said to have occurred on 26/4/2010 and the statement of PW
11 and 12 is recorded by the police after a gap of 8 to 10 days
i.e on 6/5/2010.
The Test Identification Parade was conducted on
14/9/2010 and in case of accused no.4, on 1/10/2010 i.e. after
a gap of over 5 months and that is the specific reason why
counsel for the appellants would doubt the case of the
prosecution, as they urge that it is difficult to remember the
identity of a person after such a long gap of time, and
particularly, even as per the versions of these two eye witnesses,
the assailants came in a mob and as they started assaulting,
they shifted themselves backward and could notice only a part
of the incident when the assailants continued their assault. The
prosecution version is also attempted to be discredited, since it
is urged that though accused no.7 is attributed a role of
throwing chilli powder in the eyes of the deceased, the post
mortem notes do not make any reference to presence of chilli
19/39 Apeal-668-2012+.doc
particles.
17 The counsel representing the appellants have also
relied upon the testimony of PW 14 Sagar Kamble, who had
turned hostile, but who deposed that he knew accused nos.1, 2
and 3, being his schoolmates, and on 26/4/2010, he had met
Vijay and since there was a function of Ambedkar Jayanti, he
invited him. He received phone calls from Vijay, but on account
of ongoing function, he could not clearly hear him but Vijay
met him between 11.00 pm to 11.30 p.m and he left by
informing that he will see him later. According to PW 14, Vijay
did not refer to him about the incident of quarrels. Since the
witness turned hostile, he was cross-examined by the learned
Public Prosecutor who denied the suggestion that Vijay told him
that he had committed the murder of one person and he had
provided water to him. When confronted with, the police
statement recorded on 28/4/2010, he admitted portion
marked 'A' but volunteered that he had stated so because of the
pressure and torture by the police. He denied the suggestion
that he is trying to save the accused persons.
Further, when the learned APP confronted him with
the statement under Section 164, he stated that the statement
was given by him as per the instructions of the police, and
though it is true and correct, it is recorded under the influence
of the police, but he admit that when the statement was
recorded, police was not present and he had signed the
statement.
20/39 Apeal-668-2012+.doc
In cross-examination, he categorically admitted that
the police officers threatened him that if he did not depose as
directed, before the Magistrate, he will be involved in false
cases and because of the threat, he gave a narration before the
Magistrate, although no incident had taken place as specified in
the statement recorded under Section 164.
Relying upon the testimony of this witness, it is
sought to be urged before us that the witnesses were threatened
to depose against the accused persons and therefore, their
testimony do not deserve any weightage, as their version is
concocted and fabricated and their evidence require a strict
scrutiny.
18 There is a serious doubt raised about the version of
PW 11 and 12, as their statement is recorded by a delay of one
week. PW 11 and 12 claimed to be present on the site, but how
did the police reach them, or on whose statement, they were
tracked is a moot question as in the statement given to the
police, PW 12 has stated that the police approached him after a
week and his statement was recorded.
It is therefore necessary to turn our attention to the
deposition of the Investigating Officers. It is PW 13 Bhaskar
Bhonde who registered the crime on complaint of one Pratik
Nandu Gavali as per his narration.
Pratik has not supported the case of the prosecution
but from his complaint lodged on 26/4/2010, while narrating
the incident alleged to have taken place on 26/4/2010, he
21/39 Apeal-668-2012+.doc
named Accused Nos.1 to 3 and made reference to other four to
five persons. Vijay Dhamdhere, Accused No.3 is alleged to have
hit Harshal by stump in his head, whereas according to him,
Pratik (Accused No.1) stabbed him in his chest by gupti and the
second location on which he stabbed him by gupti, is his right thigh.
Mithilesh, Accused No.2, is alleged to have
assaulted by means of a stone and thereafter, the other four to
five persons who were present, according to the complaint,
assaulted him by fists and blows.
This version, when juxtaposed against the testimony
of PW 11 and 12, bring on record some inconsistency. PW 11
and 12 were not acquainted with the accused, but they make
reference to 7 to 8 persons out of whom, two are alleged to
have assaulted by stump and the assailant with a hair tuft had
given a blow in the stomach of the deceased and when he
attempted to run away, his trouser got entangled, and he fell
down and one of the assailant is alleged to have assaulted by
big stone. Upon he falling down, the person who had assaulted
him by gupti gave two blows to the injured.
PW 12 who also claim to be an eye witness to the
incident, has deposed that they saw 7 to 8 persons being armed
with the weapons and two persons assaulted on the head and
back of the person who provided water. As per his version, the
person in possession of knife or gupti gave blow to the injured
and when he attempted to run away, two persons threw chilli
powder. When the injured again attempted to run away and
22/39 Apeal-668-2012+.doc
being entangled, fell down, according to him, 8 to 10 persons
started assaulted him and the person having gupti gave two
blows and thereafter, they ran away.
Mayur Malusare is the person who is identified by
PW 12, who gave blows by means of gupti, whereas accused
no.4 Mayur and accused no.3 Vijay are identified as the one
who assaulted by means of stump and stone.
19 This version of these witnesses deserve
corroboration from the medical evidence of the Medical Officer
Dr. Subhash Madane, PW 7, who conducted postmortem of the
dead body.
In his deposition, he referred to the following
surface injuries :-
"1 Stab injury left side of chest, lateral aspect, anterior axillary line,
transversely directed, and spindle in shape. Both edges were sharply cut,
one angle was sharp and other angle was bevelled in 5th intercostal space
and diamension was 2 cm. X half cm. and 6 cm. Deep. Deepness was
measured by blunt probe which was directed medially and slightly
upward.
2 Contused lacerated wound, left high parieto temporal area of scalp,
which was directed antoro posteriorly and 6 cm. X 1 cm. and bone deep in
diamension.
3 Incised wound left side of scapular area of back. Spindle sharp and
directed transversely 2 cm. X 1 cm. In dimension.
4 Contused lacerated wound right side of chest on anterior aspect, 4 cm.
X half cm. In diamension and obliquely directed.
5 There were multiple abrasion present i.e. left side of back, scapular
area, another was on right side of arm, lateral aspect and right elbow
medial aspect, left thigh lateral aspect and left knee.
20 As per PW 7, Injury Nos.1 and 3 in form of stab
wound on the left side of chest and incised wound left side of
23/39 Apeal-668-2012+.doc
scapular area of back, are 'grievous injuries', being caused by
sharp weapon, whereas injury nos.2 and 4 (CLW) on left high
parieto temporal area of scalp and on right side of chest are
opined to be caused by hard and blunt object, whereas injury
no.5 is opined to be possible by rough surface.
In the opinion of PW 7, injury no.1 i.e. the stab
injury was found sufficient to cause death and as per the
opinion, the death was caused due to hemorrhagic shock due to
stab injury to left lung. On being confronted with the stone
(Article 4) and wooden stump (Article 6), injury nos.2 and 3
are stated to be caused by stone and whereas injury no.2 is also
found to be possible by wooden stump. Article 7 i.e. gupti and
article 20 (knife) of hexablade are found to be responsible for
causing injury no.1 and injury no.3.
The Medical Officer is put to strenuous cross-
examination as regards injury nos. 1 and 3, and the object with
which the injuries are caused. However, he deposed that from
injury no.1 it can be seen that the weapon was inserted to the
extent of 6 cm, and the width of the weapon, Gupti, (Article 6),
at the end of 6 cm is one cm, and the existing wound is greater
than inserted wound after removal of the weapon. He denied
the suggestion that injury no.1 cannot be caused because of
Article no. 6 i.e. Gupti. He also admitted that incised wound
could be possible because of use of sharp weapon and rather
incised wound itself suggest the sharp cutting injury and denied
the suggestion that it is not possible that the deceased with
24/39 Apeal-668-2012+.doc
Article no. 6 in his hand fell on it, and injury no.1 is resulted. It
is through PW 7, the postmortem report (Exhibit 142) is
proved, which has referred to the five injuries in Column 17,
and injury no.1 was attributed to a sharp edge, elongated
weapon, whereas injury no.3 is attributed to a sharp edge
weapon, whereas injury nos. 2 and 4, according to the witness,
are the result of hard and blunt object. It is worth to note that
that the postmortem report of the doctor do not refer to the
presence of chilli powder in the eyes of deceased.
21 Turning to the recovery of the weapons, which are
alleged to be used by the accused, the prosecution has
examined the panch witnesses. There is recovery of knife
(Article 20) from accused no.4 Mayur, whereas there is
recovery of Gupti (Article no.7) from accused 5 Mayur
Malusare. From the spot, there is recovery of two wooden
sticks/stumps but the panch to this recovery PW 5, Sameer
Wadane, as well as PW 6, Bushan Shinde, have turned hostile,
and did not support the case of the prosecution.
From the testimony of PW 8, the complainant, PW
11 and 12 being examined as eye witnesses, what emerges is
the assault on the deceased by stump and a blow of Gupti, and
hitting the deceased by stone. PW 12, who deposed in sync with
PW 11, also refer to assault by stump and gupti, and also refer
to the stone by which accused number 4 assaulted the
deceased. Though PW 8 had turned hostile, the prosecution has
succeeded in extracting the relevant statements made by him in
25/39 Apeal-668-2012+.doc
the FIR, and the statement under Section 164 of Cr.P.C. In the
FIR, though he has contradicted with the statement made by
him on the basis of which FIR is registered, the version of the
prosecution case is at variance, as PW 8 in the complaint, had
stated that Pratik Dolas, accused no.1 had stabbed Harshal in
his chest by gupti, and the second assault was mounted by him
on his right thigh, whereas Vijay continued to assault him by
stumps.
PW 8 ultimately has not supported the case of the
prosecution and was declared hostile as he deposed that he saw
Harshal lying down in an injured condition but he had no idea
who assaulted him.
The credibility of the two witnesses, PW 11 and 12
is to be determined on the basis of the cross examination to
which they are subjected and we must refer to the cross
examination.
In the cross examination, PW 11 admit that he had
not stated to the police that, on reaching Chinese stall, he
demanded water from the person, who was running the stall,
nor did he recollect that he told the police that he and his
brother were discussing what food items are to be ordered from
the food stall. He also do not recollect whether he stated to the
police that some of the assailants came towards the stall and
used abusive language and the said facts are not referred in his
police statement. Though he had stated to the police that one of
the assailants assaulted the deceased by stone, he had not
26/39 Apeal-668-2012+.doc
given his name to the police, and he admit that there is no
specification that the assailant who had given blow of stone on
deceased. In the cross examination, PW, 11 admit that he could
not give the exact location of Chinese stall, as near the Chinese
stalls, there are 2 to 4 stalls, and the stall is situated in a shop,
where the food is prepared, and in front of the stall, there are
tables to serve the customers. He admit that after the incident,
he came backside near 30 to 40 feet.
He is confronted with portion marked 'A' in his
police statement during cross examination by Advocate for
accused 1, 2 and 7, where he admitted that he had stated that
they got down near the garden from the Jeep, but there is no
garden, and he had not seen any garden on Alandi Road.
In cross examination, PW 11 has deposed that apart
from he and his brother, PW 12, the deceased and the cook of
the Chinese food, there was one person who was serving the
food i.e. waiter, but surprisingly, neither the cook nor the
waiter who had also witnessed the happenings on the spot are
examined by the prosecution, though according to PW 11, they
were present at the stall when the incident took place. In cross-
examination, PW 11 has given the following admission.
"The 7 to 8 assailants referred above by me came from lane side. My face
was on the lane side and my brother's back was on lane side. The assault
took place in my presence on my front side. After assault I was afraid of
and came backward (back foot) i.e. towards lane side. Initially my face
was towards lane side but after the incident start I stood and then turned
and came back foot. After assault injured ran towards front side to the
extent of near about 30 feet."
27/39 Apeal-668-2012+.doc
He further deposed that after the assault, he was on the
spot for 4 to 5 minutes, and admitted that he did not come
across the police. PW 11 admit that he met three persons
outside the jail, but deny that he was shown the photographs of
the persons, who were to be identified in the identification
parade, and he identified the persons based on the
photographs.
22 It is also very interesting to note as to how PW 11
was cited as a witness, as he has deposed that he was residing
in Pavan Apartments on 2nd floor, and one Gama Nav was
residing with him who was into readymade garment business,
who used to purchase ready-made clothes from wholesale and
used to give them the clothes for selling the same. According to
PW 11, he had not received any witness summons from the
Court, but he received message from Gama Nav regarding the
witness summons received by him through police, and it is he
who informed his master about the message of witness
summons at Aurangabad, who communicated it to him. He
admitted that he met the police 8 to 10 days after the incident,
and he had not discussed about the incident till he met the
police. It is strange when PW 11, stated thus:-
"I met with police on the spot when I was proceeding on the road at the
time when the police were inquiring. I have no idea whether police
personnels were inquiring with all the passers by when they were
proceeding on the road. Police saw me and called me when I was
discussing with my brother. It was afternoon time. Police has inquired
with me about the incident when I was proceeding on the road. I do not
remember apart from me whether other persons were there with whom
the police were inquiring or not. Where the incident took place near the
spot police were standing and inquiring. After inquiry by police the
28/39 Apeal-668-2012+.doc
police told me to come with them to outpost police chowky and then I
went with them. When police inquired with me first, at that time, they
took my name and address."
According to him, the police took him to Bhosari
police station, typed his statement in computer but he did not
read the statement and he never reported to the police after
recording the statement. He admit that he was not having any
mobile when he was carrying on business, but he admit that he
received the message regarding Identification Parade also from
Gama Nav.
23 As far as the cross examination of PW 12 is
concerned, he admit that after the incident he went to Bhosari
police station after 8 to 9 days and here, he contradicts his own
brother PW 11, who had deposed that he met the police on the
spot when he was proceeding on the road when the police were
inquiring. PW 12, however, state that he went to Bhosari police
station after 8 to 9 days, but he do not state that his statement
was recorded by the police. Further according to him, he had
not received the witness summons.
According to PW 12, apart from him, there were
one or 2 customers on the stall, but none of them are cited as
witness. He deposed that the incident took place, suddenly, and
other persons were shocked, and went on the backside, because
they were afraid.
He also admit that he had not read over the
statement in Marathi, and that when his statement was
29/39 Apeal-668-2012+.doc
recorded, his brother was with him. He also admit in cross-
examination that he narrated the incident to the police who
dictated the same to the operator of the computer, and that is
how his statement was recorded. He did not receive any
message from the police for attending the Test Identification
parade, but his brother told him. A categorical admission from
this witness is extremely crucial for the prosecution, which
reads thus :-
"11. During the course of recording my statement by the police, I
stated them that I do not know them. It is true that police had made
inquiry with me about the description and age of the assailants. At the
time of inquiry, I told the police that I am not in a position to tell their
actual appearance but if they came before me, I can identify them. It not
correct to say that since I was not present at the time of incident on the
spot, and therefore I am unable to give detailed description and
appearance of the assailants. It not correct to say that my statement that
on 26th April, 2010, 7 to 8 persons at about 10.15 p.m. came on Chinese
Food Stall with weapons like stump, gupti and assaulted on deceased by
the stump, gupti and blow and then ran away is my correct statement. It
is true that in my police statement I had not stated to the police that the
gupti which was used for commission of the crime having blue coloured
handle. When we proceed after incident, at that time injured was lying
there. It not correct to say that on the instigation of the police I had
identified the accused persons and falsely implicated them in this crime."
24 In cross examination of PW 12, he admit that he
had not narrated the incident to anybody, till recording of his
statement, and he is not possessing any mobile phone. He
admit that, in his police statement, his mobile number is
recorded, but he never raised an objection in that regard, nor
had he stated to the police that he was possessing a mobile
phone. He disowned the statement given to the police that on
the date of incident, 7 to 8 persons came running to the
30/39 Apeal-668-2012+.doc
Chinese stall. He also admit that at the time of incident, traffic
was going on the road and adjacent Chinese shops were open
and even one Om Vadapav shop was running, at the time of the
incident at night. He admits that he had stated to the police
that he had seen the incident from the spot of Vadapav.
He is also cross-examined about his participation in
the TI parade, and he admit that while entering the jail for
identification parade and there were four persons, one is his
brother and two are seen by him for the first time, and he had
talk with the persons. He did not remember whether he had
seen Sachin Dolas at the time of identification parade, but he
identified the accused persons. He denied the suggestion that,
at the time of incident, Sachin Dolas had thrown chili powder
in the eyes of deceased, is an incorrect statement.
25 It is this inconsistency in the version of the two
witnesses who claim to be the eye witnesses, which is put forth
by the counsel representing the accused and from the evidence
of the star witnesses of the prosecution, it becomes evident that
there were some other customers at the stall, and apart from
the deceased, the cook and the waiter were also present at the
stall, but the prosecution has failed to bring them as witnesses
for reasons best known. Further, it is also the version of PW 11
that other stalls were open and the road was busy at that time,
but surprisingly, the prosecution has not examined either of the
witnesses.
31/39 Apeal-668-2012+.doc
A Chinese food stall being operated at Bhosari Road,
Pune was surrounded by other stalls, including a Vadapav shop,
but not a single person from the said stall is cited as a witness
by the prosecution, despite a categorical admission on part of
the PW 12, that at the time of incident, there was traffic on the
road, and adjacent shops to the Chinese stall were open. The
presence of Rehmat and Nasir, witness nos.11 and 12 on the
spot appear to be extremely doubtful and on a closer scrutiny of
the evidence, it is seen that they are contradicting each other in
their version on material aspect.
26 There is no reference to an assault by knife by either
of the eye witnesses and both of them have referred to one
person with Gupti who had given 2 blows to the injured, after
which he stumbled down and before that, according to PW 12,
there was one person who was possessing knife or Gupti with
blue handle who had given blow to the injured. However, there
is recovery of a knife from Accused No.4 Mayur, when it is not
the case of either PW 11 or PW 12, that Mayur Bacchav had
assaulted by means of a knife, as PW 11 identified Mayur
Bacchav as the person who assaulted the deceased by stump
and stone, whereas PW 11 has identified Mayur Malusare, PW
5 to have assaulted Harshal, the deceased, by gupti and Mayur
Bacchav, accused no. 4 to have assaulted the deceased by stone,
whereas PW 12 has also identified the person with gupti to be
accused No. 5. Mayur Malusare and Mayur Bacchav was
identified as a person who was assaulted by means of stump
32/39 Apeal-668-2012+.doc
and stone. Since it is not the case surfacing on record through
the evidence of PW 11 and 12, that accused No.4 Mayur ever
assaulted by knife, the recovery of knife (Article 12) at the
instance of accused No. 4 Mayur Bacchav is a twist in the tale.
27 As per the panch witness, PW1, in his discovery
statement, he had told the police that he had used a knife for
commission of offence, and he will lead the police to the same,
and thereafter, the police covered his face and took him to a
Mezzanine Chowk, Alandi Road, and the Jeep was stopped in
front of Sai Baba Tea stall. Thereafter on the clue of the
accused, they proceeded behind Saibaba Tea Stall and removed
the earth and a knife was brought. This discovery is attributed
to Mayur Bacchav. In cross examination on behalf of Mayur,
PW 1 admit as below
"It is true that in memorandum statement it is not
mentioned that accused Mayur Bachav had removed the
earth and brought suri from the pit where he had
hidden it."
We therefore wonder how this could have amounted to a
discovery at the instance of accused Mayur, and in any case,
since neither PW 11 nor PW 12 had referred to any assault on
the deceased by knife, but there is only mention of stump,
stone and Gupti, as weapons of assault. The whole prosecution
case appear to be doubtful.
28 The recovery of Gupti (Article 7) from Accused No.5
Mayur Malusare is also equally doubtful as when we turn to the
33/39 Apeal-668-2012+.doc
evidence of PW 2, the Panch on the memorandum statement, of
Accused No.5 (Exh.124), he deposed that the Jeep was stopped
at the site, indicated by him, and the accused took the team
behind the PCMC office near the garage, and from the small
shrub near a tree, he brought out one Gupti, which was seized
through panchanama (Exh.125).
It is inconceivable that the weapon which was used
in commission of an alleged offence on 27/4/2010 was
discovered at the instance of the accused after more than 8
days, and that too, from an open place, and obviously
frequented as it was behind the Pune Municipal Corporation
Office.
The recovery of both the weapons that is, knife and
Gupti is, therefore, doubtful.
29 There is also recovery of clothes of Accused No.3
and other co-accused from Vijay Dhamdhere, which is proved
by PW 3 (Exh.127 and 128), which is from a shop and being
kept behind the plywood sheet, and these are alleged to be the
clothes of Accused Nos.1 to 6, but the clothes are not produced
before the Court during trial.
As far as the scene of offence is concerned, PW 5
has turned hostile and did not support the case of the
prosecution, that a Spot Panchanama was prepared in his
presence so is the case of PW 6 as regards the Spot
Panchanama and the seizure of sticks and stones from the spot.
As these witnesses have turned hostile, the seizure of the
34/39 Apeal-668-2012+.doc
stumps/ sticks, and the stone which is alleged to be used to
assault the deceased is not at all established.
30 The identification of the accused persons by the two
eye witnesses, PW 11 and 12, is also doubtful, as we note that
four witnesses -- PW 8, 9, 11 and 12, participated in the TI
parade.
As far as the identification by PW 8 is concerned,
he had deposed that he identified some persons during
identification parade, and this included Accused Nos.1, 2, 4, 5,
but he identified them as they were his classmates and they
were from his village. He also identified Pratik Dolas as he
knew him.
His identification of the accused persons is on
account of the fact that he knew them, but since he pretended
ignorance that they were the assailants, his identification in T.I.
Parade is of no consequence.
As far as PW 11 is concerned, he did not identify
accused number 1 and 2 in the TI parade, and he did not assign
any role to other accused persons whom he identified in the
Court, though he identified accused number 3, 4 and 5.
A general statement by him that all assailants are
present in the Court is not sufficient to establish the identity
each of the accused charged, and their involvement in the
incident leading to the death of Harshal.
35/39 Apeal-668-2012+.doc
Similarly, PW 12 has identified Accused Nos.2,3 and
4, but failed to identify Accused Nos.1 and 7. In the Court, he
identified Accused Nos. 3, 4 5 and 7 to be the persons who
threw chili powder in the eyes of deceased. However,
according to us, these witnesses cannot be completely
disbelieved, as the two witnesses have seen the incident
partially as per their own version, as they moved behind, while
the incident was taking place, and even their presence on the
spot itself is doubtful, as nobody make a reference to their
presence, and since it is a mystery as to how the investigating
officer reached to them, as witnesses to the incident of murder
of Harshal and with the contradiction amongst the 2 brothers
themselves, as according to PW 12, he went to Bhosari police
station and gave his statement whereas according to PW 11
when the police were conducting inquiry they questioned him
and he agreed that he was a witness to the incident which
happened after 8 to 10 days and their testimony in absence of
corroboration cannot be relied for conviction.
The identification of the accused after a gap of over
5 months in the prison also create a serious doubt, and in
absence of prosecution conclusively establishing that the said
accused persons were the assailants, and according to us, the
prosecution has failed to establish its case beyond reasonable
doubt, and with the lacunae and loopholes left by the
prosecution, the benefit of doubt must accrue in favour of the
accused.
36/39 Apeal-668-2012+.doc
It is also to be noted that the T.I. Parade conducted
also is not of much consequence, as it was conducted after
filing of the charge sheet, and in any case, it not being the
substantive evidence, but only lead credence to the
identification of the accused persons, particularly, when the
accused were unknown to the witnesses. Moreover, the
description of PW 11 and 12 about the assault mounted on the
deceased do not match with the medical evidence, making the
prosecution case more doubtful.
31 In Criminal Law, the burden of proof rest squarely
on the prosecution, requiring it to prove its case "beyond
reasonable doubt" to secure a conviction, since the criminal
jurisprudence in the country is routed in the principle of
presumed innocence and the defence does not need to prove
innocence but can challenge the prosecution's evidence, while
the prosecution must present compelling proof for the element
of crime.
It is the duty of the prosecution to establish the
charge, which the accused is to answer, by adducing reliable
and convincing evidence and the evidence should establish his
guilt beyond reasonable doubt, and this burden do not shift on
the accused. Unlike the proof of a fact based on preponderance
of probability in civil proceedings, in criminal prosecution, the
burden to prove the guilt of the accused is solely on the
prosecution and in support of the accusation, the prosecution
must lead such evidence which would be sufficient enough to
37/39 Apeal-668-2012+.doc
establish the guilt of the person facing the charge. In case the
prosecution fails to discharge the burden i.e. the obligation to
prove the guilt of the accused and the prosecution case results
into some lacunae or loopholes, in that case, the benefit of the
same would accrue to the accused. It is well settled position
that in a criminal trial, an accused is presumed to be innocent
unless the presumption is rebutted by the prosecution by
producing convincing evidence against the accused, which
prove his guilt against the specific charge, and the Court cannot
render a finding of guilt, until it is so proved by the
prosecution. If there are two views which are possible on
appreciation of the evidence led by the prosecution; one
favoring the accused and the other against the accused, then
the view which is favorable to the accused, shall be adopted.
Whenever the Court finds a reasonable doubt about the guilt of
an accused, the accused must get the benefit of such doubt.
32 Since it is the burden of the prosecution to establish
that all the accused persons, in furtherance of their common
intention, had assaulted the deceased Harshal with weapons
and had the prosecution established conclusively that all the
accused persons are responsible for causing death of Harshal,
the trial Judge was justified in rendering a finding of
conviction, convicting them under Section 302 IPC read with
Sections 143, 147, 148 (accused nos.1 to 5) and 149 of the IPC.
However, for the reasoning which we have disclosed in the
aforesaid paragraphs, and on appreciation of evidence, in
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exercise of our appellate power, we have come to a conclusion
that the prosecution has failed to discharge its burden to
conclusively establish the guilt of all the convicted accused and
with the loopholes in the case of the prosecution, which have
surfaced on record during the trial, through the extensive cross-
examination of its witnesses and the inconsistency in their
version, with no corroboration to be found in the testimony of
the alleged eye witnesses with a further doubt being raised
about identity of the assailants, according to us, the benefit
must go to the accused persons. The Addl. Sessions Judge,
conducting the trial has erred in not considering that the
prosecution had not succeeded in establishing its case beyond
reasonable doubt, and since we could find several lacunae and
loopholes in the case of the prosecution, according to us, the
finding of guilt, and the sentence imposed in the impugned
judgment, cannot be sustained.
The aforesaid discussion must therefore, result in
quashing and setting aside of the judgment passed by the Addl.
Sessions Judge, Pune, in Sessions Case No. 565/2010 which
have convicted the seven appellants and held them guilty of the
charges levelled against them, to be followed by imposition of a
sentence on their guilt being proved.
We, therefore, allow the Seven Criminal Appeals
filed by the appellants and quash and set aside the judgment of
the Addl. Sessions Judge passed in Sessions Case No. 565/2010
dated 1/6/2012.
39/39 Apeal-668-2012+.doc
The Appeals are allowed.
The appellants, who are incarcerated are directed to
be released forthwith, unless their detention is warranted in
any other case.
(SHYAM C. CHANDAK, J.) (BHARATI DANGRE, J.)
